Punjab-Haryana High Court
Deepak vs State Of Haryana on 16 October, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
Criminal Appeal No.851-DB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No.851-DB of 2008
Date of Decision:16.10.2012
Deepak ......Appellant
Versus
State of Haryana
......Respondent
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. Sukhdeep Parmar, Advocate for the appellant.
Mr. S.S. Patter, Sr. D.A.G. Haryana.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
This appeal has been filed by Deepak son of Amar Nath resident of village Shakarpura, P.S. Hasan Pur, District Samastipur, Bihar against the judgment of the learned Additional Sessions Judge, Karnal, dated 18.10.2008 convicting the accused-appellant under Section 364-A of the Indian Penal Code (for short "IPC") as also against the order of sentence dated 22.10.2008 whereby he has been sentenced to undergo imprisonment for life on being found guilty of kidnapping a 13 year old boy namely Yuvraj alias Yanki son of Nand Kishore Sharma for ransom, besides, imposing fine of Rs.1,000/- and in default of payment of fine to further undergo RI for two months.
The prosecution story as revealed in FIR No.677 dated 18.12.2007 registered at Police Station Civil Lines, Karnal at 12:40 p.m. on the complainant of Nand Kishore, Junior Engineer employed with the BSNL, Karnal, father of Yuvraj is as follows: the complainant stated that he Criminal Appeal No.851-DB of 2008 2 has three children, the middle one being Yuvraj aged 13 years, the victim. In 2006, the complainant had engaged one Satnam Singh son of Tara Singh a contractor to construct the first and second floor of his house at Karnal. The contractor had engaged the services, amongst other workers, of a labour called Deepak-accused-appellant son of Amar Nath from Bihar for shuttering work and therefore, the members of his family became familiar with Deepak-appellant.
On 17.12.2007, Nand Kishore Sharma returned home after duty as usual at 7 p.m. He was informed by his wife Anju Sharma that Deepak had come to their house at 6.30 p.m. and had taken Yuvraj @ Yanki with him on a bicycle saying that the wife of Satnam Singh contractor had asked for Yuvraj, but the boy had not returned home. On this, the complainant went to the house of Satnam to inquire after Yuvraj but was told by Manni son of Satnam that Yuvraj has not visited their house and that his parents were away to Chandigarh since the morning whereupon the complainant returned home to inform and continue the search. At about 9 p.m., Vikram Singh @ Vicky, a neighbour, called the complainant on his mobile No.94160-47100 and informed him that Deepak had called Satnam Contractor on his mobile that Yuvraj has been taken away by Deepak. On returning home, the complainant found Satnam contractor present there. Satnam informed him that Deepak-appellant had called him as well on his mobile telling him that he had kidnapped Yuvraj and was demanding Rs 3,00,000/- as ransom for the boy's release. Satnam said that Deepak had warned him that in case the demand is not met, he would kill the boy. The boy did not return home and the next day the said FIR was registered at 12:15 p.m. and the criminal law was set into motion. Since an offence Criminal Appeal No.851-DB of 2008 3 punishable under Section 364-A IPC was made out, on lodging of the FIR a special report was sent to the area Magistrate and to the designated officers informing of the registration of the FIR.
The police launched a search for the kidnapped boy. Yuvraj was recovered from the custody of Deepak in the mid afternoon of 18.12.2007. The accused was arrested and taken into custody. The bicycle used by Deepak to kidnap Yuvraj and the knife used to threaten the boy was recovered from the accused and taken into possession by the police vide recovery memos. The statement of Yuvraj under Section 164 Cr.P.C. was recorded by the Magistrate Court.
On completion of the investigation, a final report was presented before the trial Court under Section 173 Cr.P.C. The case was committed for Sessions trial. The charge was framed under Section 364-A IPC. The accused pleaded not guilty and claimed trial. The prosecution led as many as 16 witnesses in support of its case.
The victim Yuvraj appeared as PW-3 and narrated the sequence of events starting from 6:30 p.m. on 17.12.2007 when Deepak came to his father's house to inform that wife of Satnam had called him and to take him. Yuvraj informed his mother that "Satnam uncle's wife" was calling him and that he was going to meet her. His mother gave him his shoes to wear and let him to go with Deepak on his bicycle since Deepak was known to them. Deepak, however, did not take him to Satnam's house but told him that 'Satnam aunti' was standing near the Sai Baba Temple and he had to bring back her 'Scooty'. Yuvraj told Deepak the he should have informed his mother of this diversion but was assured that it would hardly take two minutes more to bring back the Scooty. The accused instead took Yuvraj to Criminal Appeal No.851-DB of 2008 4 a lonely place behind a Gurdwara. When Yuvraj asked why he was brought here he was told that the keys of the Scooty were lying in Satnam uncle's godown. The boy was then taken to the Meerut Road near about a canal where accused began torturing him. The accused then revealed the truth that he had kidnapped him and that he should asked his father to bring Rs 3,00,000/- to secure his release from his clutches. On reaching the godown, there was another person present who gave signal to the accused who threatened to throw the boy in the canal if he did not call his father while pointing a knife at him. The accused-appellant/Deepak detained and put Yuvraj under fear throughout the night in the area near the canal threatening him to reveal the phone number so that he could speak to his father. Yuvraj was taken to a room where two persons were standing outside. The boy was detained for 2-3 minutes in a dark room and threatened to be killed if he dared to go out. After which he was taken to a sugarcane field. It was night. The day broke. Thereafter, the following day the accused took Yuvraj to an area near about the Canal but towards Madhuban where Yuvraj ultimately found help in the shape of two policemen on beat. He jumped from the bicycle and ran towards the police and narrated to the two policemen the entire story. Those policemen nabbed Deepak on the spot and took both to the PTC Madhuban where on 18.12.2007, his parents were called and the boy was reunited with his parents.
In his cross examination, Yuvraj deposed that the accused did not make any telephone call in his presence. He, however, said that he was under threat at knife point. His attempts to escape were foiled by the accused under threat of harm. He sought no help from third persons as he was put under immanent threat of liquidation if he disclosed anything. He Criminal Appeal No.851-DB of 2008 5 said that he has never been with the accused previously. He also said that in his presence, the accused had never raised any demand of money from his parents. He said that Satnam's house was on the rear side of their family house.
Satnam Singh, Contractor appeared as PW-13, he deposed that on 17.12.2007, he and his wife were away to Chandigarh and returned in the evening. He received a call from the appellant Deepak on his mobile No.94160-32008. The accused-Deepak spoke from telephone number 0184- 2284992 and told him that he had kidnapped Yuvraj @ Yanki son of Nand Kishore Sharma and that he was taking him away and killed. The accused demanded Rs 3,00,000/- as ransom from his father in lieu of release of his son. On that, he came to the house of Nand Kishore Sharma but found him and his wife away for searching the missing son. He waited for their return and told them of the call which he received from the appellant and the demand of ransom. He deposed that he joined Nand Kishore in the search of Yuvraj @ Yanki the entire night. On the next day, he learnt that Yuvraj has been recovered from the accused by the police at Madhuban. In his cross examination, he narrated that he knows Nand Kishore but did not know him prior to the construction. He stated that he had cordial relations with Nand Kishore and the families were on visiting terms. He deposed that accused-Deepak had worked with him for about 4-5 years after which he removed him on account of his misdeeds. He stated that he was not regular in reporting for duty and was a habitual borrower of money. He had settled his accounts with the accused and there was nothing outstanding between them. He had stopped employing him. He stated that his son had called him when he was near Shahbad to inform him of the kidnapping. He further Criminal Appeal No.851-DB of 2008 6 stated that the telephone call received by him from accused Deepak was at about 7:45 p.m. He said that he had returned to his home after the search at about 4:30 a.m. in the night intervening 17/18.12.2007.
Vikram Singh, the neighbour, appeared as PW-15 and deposed that on 17.12.2007, he returned from his village at about 8:00 p.m. to his home and was a neighbour of Nand Kishore's family. The neighbours had collected. He was informed that Yuvraj @ Yanki was missing. After about 5 minutes, Satnam Singh reached there and informed of the telephone call received from the "Bihari" demanding Rs. 3,00,000/- as ransom for releasing Yuvraj @ Yanki and if not paid the boy would be taken to U.P and killed. Vikram PW-15 also joined in the search of the boy throughout the night.
The remaining statements of the prosecution witnesses are formal in nature and should not detain us further for the purpose of decision on this appeal. It may, however, be said that Yuvraj was recovered by chance by the two police constables while in the company of the accused. The memos of call details i.e. Ex.P8 (Memo of details of phone No.0184- 2284992); Ex.P9 (Recovery memo of address of STD/PCO); Ex.P10 (Recovery memo of details of phone No.0184-2284992); Ex. P13 (call details of telephone No.0184-2284992) and Ex.P14 (Call details) were duly exhibited on record.
On closure of prosecution evidence, the incriminating material gathered against the accused was put to him under Section 313 Cr.P.C. The appellant-accused denied involvement and claimed innocence and stated that he had been falsely implicated. The explanation offered by the accused reads as follows:
Criminal Appeal No.851-DB of 2008 7
"I am innocent. I have been falsely implicated in this case because Nand Kishore Sharma complainant who is posted as JE in BSNL Karnal has good relation with Satnam Singh who is a contractor. They have good visiting terms with each other. The accused had a dispute with the contractor regarding payment for the labour work done by me and contractor also used to pressurize me for doing the work only with him to which I was not ready. Constractor Satnam Singh has not made payment to me. Satnam and Complainant are influencial persons and with the connivance of police they have falsely implicated me in the present case. Nothing was recovered from me."
The accused-appellant examined Premo DW-1 in his defence. She stated that she knew Deepak personally for the last over two years. She was a co-worker under contractor Satnam Singh. Deepak had been working with Satnam Singh before she took employment with the contractor. She deposed that Deepak bore good character and castigated the contractor Satnam Singh as a person who did not pay wages to his workers on time even on demand. She deposed that Satnam Singh would threaten Deepak that if he demanded wages he would involve him in a false case. She did not know about the present case till she received summons from the Court. She stated that Deepak had been involved falsely since Satnam Singh had enmity with Deepak after the latter left his employment. In cross examination, she could not produce proof of having worked with Satnam Singh.
We have heard Mr. Sukhdeep Parmar, learned counsel for the appellant and Mr. S.S. Patter, learned Sr. D.A.G. Haryana, for the State.
The ingredients of Section 364-A require proof of three things:
Firstly, the accused kidnapped and abducted the person; secondly, the person was kept under detention by the accused after such kidnapping and Criminal Appeal No.851-DB of 2008 8 abduction, and thirdly, that the kidnapping or abduction was for ransom. The matter has to be examined accordingly.
There is no doubt that the appellant took Yuvraj with the consent of the boy's mother Anju Sharma to start with on the assurance that the boy would be taken to the residence of Satnam Singh's wife. Yuvraj fell pray to the guile practiced by the appellant who had intention to abduct and kidnap Yuvraj from the beginning. The intention became manifest when the accused failed to carry out his assurance of taking Yuvraj to the residence of Satnam Singh's wife. The appellant kept the boy in his unlawful custody throughout the night under threat of bodily injury and death in case he escaped or sought help. The deposition of Yuvraj before the Court recounts in detail the events of the night intervening 17/18.12.2007 and till the time in the morning when on seeing two police constables on beat by chance Yuvraj found opportunity to free himself from the clutches of the appellant with the help of the two constables.
Learned counsel for the appellant has argued that it has come in the evidence of Yuvraj/PW-3 that ransom was not demanded in his presence. Neither has Yuvraj said in his statement that he had seen the accused make a telephone call to anyone while he was in the unlawful custody of the appellant, therefore, the ingredients of Section 364-A IPC are not made out in this case as there was no direct evidence of demand of ransom. So far as the call of the appellant to Satnam Singh is concerned, it ought not to be believed as Satnam was inimical to the appellant for having stopped working with him. It is further submitted that since Nand Kishore father of Yuvraj was working for BSNL, the call details have been procured with a view to prosecute the appellant.Criminal Appeal No.851-DB of 2008 9
Learned counsel for the State submits that the statement of Satnam Singh is worthy of belief and he is a credible witness. He had no personal enmity with the appellant to frame him in a false case. The fact of the matter is that the appellant did make a call on the mobile phone of Satnam Singh with whom he had worked for over 2 ½ years and would obviously have known and remembered his contact number. Satnam Singh and Nand Kishore father of Yuvraj knew each other and there were social terms between the two families, besides, they were neighbours. The appellant would have known that a demand of ransom routed through Satnam Singh would reach Nand Kishore and therefore, his plan of extracting money may work.
Mr. Patter would rely on the call details from the PCO to the cell phone of Satnam Singh. The location of the PCO matches the movements of the accused and Yuvraj during the kidnap. Merely because Yuvraj did not see the appellant make the call would not prove that the appellant did not in fact make the call. Yuvraj has deposed that the appellant had left him for a few minutes alone. It is quite possible that the call was made then. PW-8 Aman Ahuja stated that a call was made from STD PCO telephone No.0184-2284992 to mobile No.94160-32008 at about 7.45 p.m. for a duration of 57 seconds. He proved the call details (Ex.P7) which the police took into possession vide recovery memo Ex.P8. There is no possibility of these calls being manipulated through the telephone exchange. Aman Ahuja was the owner of the STD PCO and ran a shop in the name of Subhash Kiryana Store near the rest house. Yuvraj mentioned in his statement that he was taken near a canal along the Meerut Road. This matches the location of the telephone booth and corroborates the statement Criminal Appeal No.851-DB of 2008 10 of Yuvraj. Besides, there would be no reason to go to such lengths as there was no prior personal enmity between Yuvraj and his family and the appellant. On the other hand, the appellant had worked as labour during the construction of the first and second floor of the house of Nand Kishore and was obviously familiar with the family personally and that the family was well off in his view sufficient to meet the demand of ransom. Still further, the knife used by the appellant to keep Yuvraj under threat throughout till he was rescued by the police was recovered from the appellant together with the bicycle used for the kidnapping. The knife used may have been a small kitchen knife but it was sufficient to put a 13 year old boy under fear of bodily harm and death.
We have given our thoughtful consideration to the matter and have perused the record.
We find that there is sufficient evidence on record to prove that the appellant Yuvraj was weaned away from his home by guile on the pretext that the boy would be taken to 'Satnam Aunty's' residence as she wanted to see him to which none would have had any objection. He never took him there. Instead, he abducted the boy slyly and made the ransom call within a little over an hour of the kidnap to Satnam Singh having failed to extract the telephone number of the father of the appellant for demanding Rs 3 lacs as ransom for the boy's release directly from the father. Yuvraj was recovered from the unlawful custody of the appellant by the police and the latter was arrested, the knife and bicycle recovered.
We do not find that the delay in lodging FIR is fatal to the prosecution case. After all Yuvraj was taken by the appellant by a trick from his home at 6:30 p.m. within knowledge of Mrs Anju Sharma mother Criminal Appeal No.851-DB of 2008 11 of Yuvraj on the pretext of meeting Mrs Satnam Singh. A better part of the night was spent searching for the boy by the parents and well wishers. There must have been fear and anxiety present in their minds throughout in their search for the boy. When the search failed, they had no option but to report the matter to the police. We have no doubt that the accused abducted and kidnapped Yuvraj; made a call for ransom to Satnam Singh; kept the boy under threat of bodily harm or death throughout the night and thereafter and after day break later in the day was arrested when Yuvraj was rescued by chance presence of the police constables on beat on seeing Yuvraj crying for help. The ingredients of Section 364-A IPC in our view stand satisfied in the present case.
For the foregoing reasons, there is no merit in this appeal and the order of conviction and sentence of life imprisonment recorded by the learned Additional Sessions Judge is upheld.
The appeal is, consequently, dismissed.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
16.10.2012
rajeev